Opinion
No. 14-08-00149-CV
Memorandum Opinion filed February 12, 2009.
On Appeal from the 23rd District Court Brazoria County, Texas, Trial Court Cause No. 21815.
Panel consists of Justices YATES, GUZMAN, and BROWN.
MEMORANDUM OPINION
This is an attempted appeal from a summary judgment order signed November 14, 2008. The clerk's record was filed on March 17, 2008.
On July 24, 2008, appellant filed a motion to dismiss, claiming the November 14, 2008, summary judgment order was not final because the trial court had not adjudicated the claims of intervenor, McFall, Breitbeil Shults. Appellees opposed the motion, asserting that the only claim by intervenor was a claim for a five percent contingency fee. Appellees claimed intervenor's right to the fee only arose if the plaintiff (appellant) recovered damages. Thus, appellees reasoned the intervenor's claim was rendered moot by the take-nothing judgment. Alternatively, appellees asked that we abate the appeal and allow the trial court to modify the November 14, 2007, order to make it final by expressly ruling on intervenor's claim.
After reviewing the case law and the clerk's record, we agreed with appellees that the intervenor's claim had been rendered moot by the trial court's November 14, 2007, judgment. On September 11, 2008, we denied appellant's motion to dismiss. Appellant subsequently filed a motion to reconsider our denial of the motion to dismiss.
On reconsideration of our ruling, we found the decision whether the November 14, 2008, judgment was intended to be a final appealable judgment should be left to the trial court. Because Rule 27.2 permits the appellate court the discretion to allow the trial court in a case to decide whether to modify the judgment to include a ruling on intervenor's claim, TEX. R. APP. P. 27.2, we abated the appeal by order of November 13, 2008, and remanded the case to the trial court.
On February 5, 2009, a supplemental clerk's record was filed, containing an order from the trial court. In this order, the trial judge asserted that he was unable to issue a final judgment because parties and claims remained pending, which required further proceedings on the merits.
Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). A summary judgment is final only if it either actually disposes of all claims and parties before the court, or it clearly states that it is a final judgment. Lehman, 39 S.W.3d at 192, 200. The order in this case does not dispose of all claims and parties.
Accordingly, we grant appellant's motion to dismiss and we order the appeal dismissed.